[DISCUSSION DRAFT] TH ST CONGRESS SESSION …online.wsj.com/public/resources/documents/billdraft0506.pdf[Discussion Draft] 1 (5) Children and teens are visiting numerous 2 companies’

[Discussion Draft]

[DISCUSSION DRAFT] 112TH CONGRESS

1ST SESSION H. R. ll To amend the Children’s Online Privacy Protection Act of 1998 to extend,

enhance, and revise the provisions relating to collection, use, and disclo-sure of personal information of children and to establish certain other protections for personal information of children and minors.

IN THE HOUSE OF REPRESENTATIVES

Mr. MARKEY of Massachusetts introduced the following bill; which was referred to the Committee on llllllllllllll

A BILL To amend the Children’s Online Privacy Protection Act of

1998 to extend, enhance, and revise the provisions relat-ing to collection, use, and disclosure of personal informa-tion of children and to establish certain other protections for personal information of children and minors.

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled, 2

SECTION 1. SHORT TITLE. 3

This Act may be cited as the ‘‘Do Not Track Kids 4

Act of 2011’’. 5

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[Discussion Draft]

SEC. 2. FINDINGS. 1

Congress finds the following: 2

(1) Since the enactment of the Children’s On-3

line Privacy Protection Act of 1998, the Internet has 4

changed dramatically, with the creation of tens of 5

millions of websites, the proliferation of entirely new 6

media platforms, and the emergence of a diverse 7

ecosystem of services, devices, and applications that 8

enable users to connect wirelessly within an online 9

environment without being tethered to a desktop 10

computer. 11

(2) The explosive growth of the Internet eco-12

system has unleashed a wide array of opportunities 13

to learn, communicate, participate in civic life, ac-14

cess entertainment, and engage in commerce. 15

(3) In addition to these significant benefits, the 16

Internet also presents challenges, particularly with 17

respect to the efforts of entities to track the online 18

activities of children and minors and to collect, use, 19

and disclose personal information about them, in-20

cluding their geolocation, for commercial purposes. 21

(4) Children are increasingly spending time on-22

line. A Nielsen Online survey conducted in July 23

2009 found that ‘‘time spent online for children ages 24

2 to 11 increased from about 7 hours to more than 25

11 hours per week, a jump of 63% over five years’’. 26



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(5) Children and teens are visiting numerous 1

companies’ websites, and marketers are using multi-2

media games, online quizzes, and cellular phone ap-3

plications to create ties to children and teens. 4

(6) According to a study by the Wall Street 5

Journal in 2010, websites directed to children and 6

teens were more likely to use cookies and other 7

tracking tools than sites directed to a general audi-8

ence. 9

(7) This study examined 50 popular websites 10

for children and teens in the United States and 11

found that these 50 sites placed 4,123 cookies, bea-12

cons, and other tracking tools on the test computer 13

used for the study. 14

(8) This is 30 percent greater than the number 15

of such tracking tools that were placed on the test 16

computer in a similar study of the 50 overall most 17

popular websites in the United States, which are 18

generally directed to adults. 19

(9) Children and teens have become the focus 20

of behavioral profiling and targeting, raising privacy 21

concerns. 22

(10) Eighty-five percent of parents say they are 23

more concerned about online privacy than they were 24

5 years ago. 25



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(11) Seventy-two percent of parents say sexual 1

predators are the main reason they are concerned 2

about children revealing personal information online. 3

(12) According to the Pew Research Center’s 4

Internet and American Life Project, 31 percent of 5

12-year-olds in the United States were using social 6

networking sites in 2006, with that figure growing 7

to 38 percent by mid-2009. 8

(13) Seventy-five percent of parents do not 9

think social networking sites do a good job of pro-10

tecting the online privacy of children. 11

(14) Ninety-one percent of parents think search 12

engines and social networking sites should not be 13

permitted to share the physical location of children 14

with other companies until parents give authoriza-15

tion. 16

(15) Significant majorities, 88 percent of par-17

ents and 85 percent of teens, want online companies 18

to require them to opt in before the companies use 19

their personal information for marketing purposes. 20

(16) Eighty-eight percent of parents would sup-21

port a law that requires search engines and social 22

networking sites to get users’ permission before 23

using their personal information. 24



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(17) A Commonsense Media/Zogby poll found 1

that 94 percent of parents and 94 percent of adults 2

believe individuals should have the ability to request 3

the deletion of all their personal information held by 4

an online search engine, social networking site, or 5

marketing company after a specific period of time. 6

SEC. 3. ONLINE COLLECTION, USE, AND DISCLOSURE OF 7

PERSONAL INFORMATION OF CHILDREN. 8

(a) DEFINITIONS.—Section 1302 of the Children’s 9

Online Privacy Protection Act of 1998 (15 U.S.C. 6501) 10

is amended—11

(1) by amending paragraph (2) to read as fol-12

lows: 13

‘‘(2) OPERATOR.—The term ‘operator’—14

‘‘(A) means any person who, for commer-15

cial purposes, in interstate or foreign commerce, 16

operates or provides a website on the Internet, 17

online service, online application, or mobile ap-18

plication and who collects or maintains personal 19

information from or about users of such 20

website, service, or application, or on whose be-21

half such information is collected or main-22

tained, including any person offering products 23

or services for sale through such website, serv-24

ice, or application; and 25



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‘‘(B) does not include any nonprofit entity 1

that would otherwise be exempt from coverage 2

under section 5 of the Federal Trade Commis-3

sion Act (15 U.S.C. 45).’’; 4

(2) in paragraph (4)—5

(A) by amending subparagraph (A) to read 6

as follows: 7

‘‘(A) the release of personal information 8

for any purpose, except where such information 9

is provided to a person other than an operator 10

who provides support for the internal operations 11

of the website, online service, online application, 12

or mobile application of the operator and does 13

not disclose or use that information for any 14

other purpose; and’’; and 15

(B) in subparagraph (B), by striking 16

‘‘website or online service’’ and inserting 17

‘‘website, online service, online application, or 18

mobile application’’; 19

(3) in paragraph (8)—20

(A) by amending subparagraph (G) to read 21

as follows: 22

‘‘(G) information concerning a child or the 23

parents of that child (including any unique or 24

substantially unique identifier, such as a cus-25



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[Discussion Draft]

tomer number) that an operator collects online 1

from the child and combines with an identifier 2

described in subparagraphs (A) through (G).’’; 3

(B) by redesignating subparagraphs (F) 4

and (G) as subparagraphs (G) and (H), respec-5

tively; and 6

(C) by inserting after subparagraph (E) 7

the following new subparagraph: 8

‘‘(F) information (including an Internet 9

protocol address) that permits the identification 10

of the computer of an individual, or any other 11

device used by an individual to access the Inter-12

net or an online service, online application, or 13

mobile application;’’; 14

(4) by striking paragraph (10) and redesig-15

nating paragraphs (11) and (12) as paragraphs (10) 16

and (11), respectively; and 17

(5) by adding at the end the following new 18

paragraph: 19

‘‘(12) ONLINE, ONLINE SERVICE, ONLINE AP-20

PLICATION, MOBILE APPLICATION, DIRECTED TO 21

CHILDREN.—The terms ‘online’, ‘online service’, ‘on-22

line application’, ‘mobile application’, and ‘directed 23

to children’ shall have the meanings given them by 24

the Commission by regulation. Not later than 1 year 25



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[Discussion Draft]

after the date of the enactment of the Do Not Track 1

Kids Act of 2011, the Commission shall promulgate, 2

under section 553 of title 5, United States Code, 3

regulations that define such terms broadly enough so 4

that they are not limited to current technology, con-5

sistent with the principles articulated by the Com-6

mission regarding the definition of the term ‘Inter-7

net’ in its statement of basis and purpose on the 8

final rule under this title promulgated on November 9

3, 1999 (64 Fed. Reg. 59891). The definition of the 10

term ‘online service’ in such regulations shall include 11

broadband Internet access service (as defined in the 12

Report and Order of the Federal Communications 13

Commission relating to the matter of preserving the 14

open Internet and broadband industry practices 15

(FCC 10–201, adopted by the Commission on De-16

cember 21, 2010)).’’. 17

(b) ONLINE COLLECTION, USE, AND DISCLOSURE OF 18

PERSONAL INFORMATION OF CHILDREN.—Section 1303 19

of the Children’s Online Privacy Protection Act of 1998 20

(15 U.S.C. 6502) is amended—21

(1) by striking the heading and inserting the 22

following: ‘‘ONLINE COLLECTION, USE, AND DIS-23

CLOSURE OF PERSONAL INFORMATION OF 24

CHILDREN’’; 25



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[Discussion Draft]

(2) in subsection (a)—1

(A) by amending paragraph (1) to read as 2

follows: 3

‘‘(1) IN GENERAL.—It is unlawful for an oper-4

ator of a website, online service, online application, 5

or mobile application directed to children, or an op-6

erator having actual knowledge that it is collecting 7

personal information from children, to collect per-8

sonal information from a child in a manner that vio-9

lates the regulations prescribed under subsection 10

(b).’’; and 11

(B) in paragraph (2)—12

(i) by striking ‘‘of such a website or 13

online service’’; and 14

(ii) by striking ‘‘subsection 15

(b)(1)(B)(iii)’’ and inserting ‘‘subsection 16

(b)(1)(C)(iii)’’; and 17

(3) in subsection (b)—18

(A) by amending paragraph (1) to read as 19

follows: 20

‘‘(1) IN GENERAL.—Not later than 1 year after 21

the date of the enactment of the Do Not Track Kids 22

Act of 2011, the Commission shall promulgate, 23

under section 553 of title 5, United States Code, 24

regulations to require an operator of a website, on-25



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[Discussion Draft]

line service, online application, or mobile application 1

directed to children, or an operator having actual 2

knowledge that it is collecting personal information 3

from children—4

‘‘(A) to provide clear and conspicuous no-5

tice in clear and plain language of the types of 6

personal information the operator collects, how 7

the operator uses such information, whether the 8

operator discloses such information, and the 9

procedures or mechanisms the operator uses to 10

ensure that personal information is not col-11

lected from children except in accordance with 12

the regulations promulgated under this para-13

graph; 14

‘‘(B) to obtain verifiable parental consent 15

for the collection, use, or disclosure of personal 16

information of a child; 17

‘‘(C) to provide to a parent whose child 18

has provided personal information to the oper-19

ator, upon request by and proper identification 20

of the parent—21

‘‘(i) a description of the specific types 22

of personal information collected from the 23

child by the operator; 24



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‘‘(ii) the opportunity at any time to 1

refuse to permit the further use or mainte-2

nance in retrievable form, or future collec-3

tion, by the operator of personal informa-4

tion collected from the child; and 5

‘‘(iii) a means that is reasonable 6

under the circumstances for the parent to 7

obtain any personal information collected 8

from the child, if such information is avail-9

able to the operator at the time the parent 10

makes the request; 11

‘‘(D) not to condition participation in a 12

game, or use of a website, service, or applica-13

tion, by a child on the provision by the child of 14

more personal information than is reasonably 15

required to participate in the game or use the 16

website, service, or application; and 17

‘‘(E) to establish and maintain reasonable 18

procedures to protect the confidentiality, secu-19

rity, and integrity of personal information col-20

lected from children.’’; 21

(B) in the matter preceding subparagraph 22

(A) of paragraph (2), by striking ‘‘paragraph 23

(1)(A)(ii)’’ and inserting ‘‘paragraph (1)(B)’’; 24

and 25



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(C) in paragraph (3), by striking ‘‘para-1

graph (1)(B)(ii)’’ and inserting ‘‘paragraph 2

(1)(C)(ii)’’. 3

(c) ADMINISTRATION AND APPLICABILITY OF ACT.—4

Section 1306 of the Children’s Online Privacy Protection 5

Act of 1998 (15 U.S.C. 6505) is amended—6

(1) in subsection (b)—7

(A) in paragraph (1), by striking ‘‘, in the 8

case of’’ and all that follows and inserting the 9

following: ‘‘by the appropriate Federal banking 10

agency with respect to any insured depository 11

institution (as such terms are defined in section 12

3 of such Act (12 U.S.C. 1813));’’; and 13

(B) by striking paragraph (2) and redesig-14

nating paragraphs (3) through (6) as para-15

graphs (2) through (5), respectively; and 16

(2) by adding at the end the following new sub-17

section: 18

‘‘(f) TELECOMMUNICATIONS CARRIERS AND CABLE 19

OPERATORS.—20

‘‘(1) ENFORCEMENT BY FTC.—Notwithstanding 21

section 5(a)(2) of the Federal Trade Commission 22

Act (15 U.S.C. 45(a)(2)), compliance with the re-23

quirements imposed under this title shall be enforced 24

by the Commission with respect to any telecommuni-25



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[Discussion Draft]

cations carrier (as defined in section 3 of the Com-1

munications Act of 1934 (47 U.S.C. 153)). 2

‘‘(2) RELATIONSHIP TO OTHER LAW.—To the 3

extent that sections 222 and 631 of the Communica-4

tions Act of 1934 (47 U.S.C. 222; 551) are incon-5

sistent with this title, this title controls.’’. 6

SEC. 4. TARGETED MARKETING TO CHILDREN OR MINORS. 7

(a) ACTS PROHIBITED.—It is unlawful for an oper-8

ator of a website, online service, online application, or mo-9

bile application directed to children or minors, or an oper-10

ator having actual knowledge that it is collecting personal 11

information from children or minors, to use, disclose to 12

third parties, or compile personal information collected 13

from children or minors, if the use, disclosure, or compila-14

tion is for targeted marketing purposes. 15

(b) REGULATIONS.—Not later than 1 year after the 16

date of the enactment of this Act, the Commission shall 17

promulgate, under section 553 of title 5, United States 18

Code, regulations to implement this section. 19

SEC. 5. DIGITAL MARKETING BILL OF RIGHTS FOR TEENS 20

AND FAIR INFORMATION PRACTICES PRIN-21

CIPLES. 22



bile application directed to minors, or an operator having 25



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actual knowledge that it is collecting personal information 1

from minors, to collect personal information from minors 2

unless such operator has adopted and implemented a Dig-3

ital Marketing Bill of Rights for Teens that—4

(1) is consistent with the Fair Information 5

Practices Principles described in subsection (b); and 6

(2) balances the ability of minors to participate 7

fully in the digital media culture with the govern-8

mental and industry obligation to ensure that opera-9

tors of websites, online services, online applications, 10

and mobile applications do not subject minors to un-11

fair and deceptive surveillance, data collection, or be-12

havioral profiling. 13

(b) FAIR INFORMATION PRACTICES PRINCIPLES.—14

The Fair Information Practices Principles described in 15

this subsection are the following: 16

(1) COLLECTION LIMITATION PRINCIPLE.—17

There should be limits on the collection of personal 18

information. Any such information should be ob-19

tained by lawful and fair means and, where appro-20

priate, with the knowledge or consent of the subject 21

of the information. 22

(2) DATA QUALITY PRINCIPLE.—Personal infor-23

mation should be relevant to the purposes for which 24

the information is to be used and, to the extent nec-25



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[Discussion Draft]

essary for such purposes, should be accurate, com-1

plete, and kept up-to-date. 2

(3) PURPOSE SPECIFICATION PRINCIPLE.—The 3

purposes for which personal information is collected 4

should be specified not later than at the time of the 5

collection of the information. The subsequent use of 6

the information should be limited to the fulfilment 7

of—8

(A) the purposes originally specified; or 9

(B) other purposes that are—10

(i) compatible with such originally 11

specified purposes; and 12

(ii) specified in a notice to the subject 13

of the information before the information 14

is used for such other purposes. 15

(4) USE LIMITATION PRINCIPLE.—Personal in-16

formation should not be disclosed, made available, or 17

otherwise used for purposes other than those speci-18

fied in accordance with the purpose limitation prin-19

ciple described in paragraph (3), except—20

(A) with the consent of the subject of the 21

information; or 22

(B) under specific legal authority. 23

(5) SECURITY SAFEGUARDS PRINCIPLE.—Per-24

sonal information should be protected by reasonable 25



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[Discussion Draft]

security safeguards against risks such as loss or un-1

authorized access, destruction, use, modification, or 2

disclosure. 3

(6) OPENNESS PRINCIPLE.—The operator 4

should maintain a general policy of openness about 5

developments, practices, and policies with respect to 6

personal information. The operator should provide 7

each user of the website, online service, online appli-8

cation, or mobile application of the operator with a 9

means of readily ascertaining—10

(A) whether the operator possesses any 11

personal information of such user, the nature of 12

any such information, and the purposes for 13

which the information was obtained and is 14

being retained; 15

(B) the identity of the operator; and 16

(C) the address of—17

(i) in the case of an operator who is 18

an individual, the principal residence of the 19

operator; or 20

(ii) in the case of any other operator, 21

the principal place of business of the oper-22

ator. 23

(7) INDIVIDUAL PARTICIPATION PRINCIPLE.—24

An individual should have the right—25



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(A) to obtain any personal information of 1

the individual that is in the possession of the 2

operator from the operator, or from a person 3

specified by the operator, within a reasonable 4

time after making a request, at a charge (if 5

any) that is not excessive, in a reasonable man-6

ner, and in a form that is readily intelligible to 7

the individual; 8

(B) to be given by the operator, or person 9

specified by the operator—10

(i) reasons for any denial of a request 11

under subparagraph (A); and 12

(ii) an opportunity to challenge such 13

denial; 14

(C) to challenge the accuracy of personal 15

information of the individual that is in the pos-16

session of the operator; and 17

(D) if the individual establishes the inaccu-18

racy of personal information in a challenge 19

under subparagraph (C), to have the informa-20

tion erased, corrected, completed, or otherwise 21

amended. 22

(c) REGULATIONS.—Not later than 1 year after the 23




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Code, regulations to implement this section. 2

SEC. 6. ONLINE COLLECTION OF GEOLOCATION INFORMA-3

TION OF CHILDREN AND MINORS. 4

(a) ACTS PROHIBITED.—5

(1) IN GENERAL.—It is unlawful for an oper-6

ator of a website, online service, online application, 7

or mobile application directed to children or minors, 8

or an operator having actual knowledge that it is 9

collecting geolocation information from children or 10

minors, to collect geolocation information from a 11

child or minor in a manner that violates the regula-12

tions prescribed under subsection (b). 13

(2) DISCLOSURE TO PARENT OR MINOR PRO-14

TECTED.—Notwithstanding paragraph (1), neither 15

an operator nor the operator’s agent shall be held to 16

be liable under any Federal or State law for any dis-17

closure made in good faith and following reasonable 18

procedures in responding to a request for disclosure 19

of geolocation information under subparagraph 20

(C)(ii)(III) or (D)(ii)(III) of subsection (b)(1). 21

(b) REGULATIONS.—22

(1) IN GENERAL.—Not later than 1 year after 23

the date of the enactment of this Act, the Commis-24

sion shall promulgate, under section 553 of title 5, 25



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[Discussion Draft]

United States Code, regulations that require an op-1

erator of a website, online service, online application, 2

or mobile application directed to children or minors, 3

or an operator having actual knowledge that it is 4

collecting geolocation information from children or 5

minors—6

(A) to provide clear and conspicuous notice 7

in clear and plain language of any geolocation 8

information the operator collects, how the oper-9

ator uses such information, and whether the op-10

erator discloses such information; 11

(B) to establish procedures or mechanisms 12

to ensure that geolocation information is not 13

collected from children or minors except in ac-14

cordance with regulations promulgated under 15

this paragraph; 16

(C) in the case of collection of geolocation 17

information from a child—18

(i) prior to collecting such informa-19

tion, to obtain verifiable parental consent; 20

and 21

(ii) after collecting such information, 22

to provide to the parent of the child, upon 23

request by and proper identification of the 24

parent—25



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[Discussion Draft]

(I) a description of the 1

geolocation information collected from 2

the child by the operator; 3

(II) the opportunity at any time 4

to refuse to permit the further use or 5

maintenance in retrievable form, or 6

future collection, by the operator of 7

geolocation information from the 8

child; and 9

(III) a means that is reasonable 10

under the circumstances for the par-11

ent to obtain any geolocation informa-12

tion collected from the child, if such 13

information is available to the oper-14

ator at the time the parent makes the 15

request; and 16

(D) in the case of collection of geolocation 17

information from a minor—18

(i) prior to collecting such informa-19

tion, to obtain express authorization from 20

such minor; and 21

(ii) after collecting such information, 22

to provide to the minor, upon request—23



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[Discussion Draft]

(I) a description of the 1

geolocation information collected from 2

the minor by the operator; 3

(II) the opportunity at any time 4

to refuse to permit the further use or 5

maintenance in retrievable form, or 6

future collection, by the operator of 7

geolocation information from the 8

minor; and 9

(III) a means that is reasonable 10

under the circumstances for the minor 11

to obtain any geolocation information 12

collected from the minor, if such in-13

formation is available to the operator 14

at the time the minor makes the re-15

quest. 16

(2) WHEN CONSENT OR AUTHORIZATION NOT 17

REQUIRED.—The regulations promulgated under 18

paragraph (1) shall provide that verifiable parental 19

consent under subparagraph (C)(i) of such para-20

graph or express authorization under subparagraph 21

(D)(i) of such paragraph is not required when the 22

collection of the geolocation information of a child or 23

minor is necessary, to the extent permitted under 24

other provisions of law, to provide information to 25



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[Discussion Draft]

law enforcement agencies or for an investigation on 1

a matter related to public safety. 2

(3) TERMINATION OF SERVICE.—The regula-3

tions promulgated under paragraph (1) shall permit 4

an operator to terminate service provided to—5

(A) a child whose parent has refused, 6

under subparagraph (C)(ii)(II) of such para-7

graph, to permit the further use or maintenance 8

in retrievable form, or future online collection, 9

of geolocation information from the child by the 10

operator; or 11

(B) a minor who has refused, under sub-12

paragraph (D)(ii)(II) of such paragraph, to per-13

mit the further use or maintenance in retriev-14

able form, or future online collection, of 15

geolocation information from the minor by the 16

operator. 17

(c) INCONSISTENT STATE LAW.—No State or local 18

government may impose any liability for commercial ac-19

tivities or actions by operators in interstate or foreign 20

commerce in connection with an activity or action de-21

scribed in this section that is inconsistent with the treat-22

ment of those activities or actions under this section. 23



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[Discussion Draft]

SEC. 7. ERASER BUTTONS. 1



bile application to make publicly available through the 4

website, service, or application content that contains or 5

displays personal information of children or minors in a 6

manner that violates the regulations prescribed under sub-7

section (b). 8

(b) REGULATIONS.—9

(1) IN GENERAL.—Not later than 1 year after 10

the date of the enactment of this Act, the Commis-11

sion shall promulgate, under section 553 of title 5, 12

United States Code, regulations that require an op-13

erator—14

(A) to the extent technologically feasible, 15

to implement mechanisms that permit users of 16

the website, service, or application of the oper-17

ator to erase or otherwise eliminate content 18

that is publicly available through the website, 19

service, or application and contains or displays 20

personal information of children or minors; and 21

(B) to take appropriate steps to make 22

users aware of such mechanisms. 23

(2) EXCEPTION.—The regulations promulgated 24

under paragraph (1) may not require an operator to 25

erase or otherwise eliminate information that the op-26



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[Discussion Draft]

erator is required to maintain under any other provi-1

sion of Federal or State law. 2

SEC. 8. ENFORCEMENT AND APPLICABILITY. 3

(a) ENFORCEMENT BY THE COMMISSION.—4

(1) IN GENERAL.—Except as otherwise pro-5

vided, this Act shall be enforced by the Commission 6

under the Federal Trade Commission Act (15 7

U.S.C. 41 et seq.). 8

(2) UNFAIR OR DECEPTIVE ACTS OR PRAC-9

TICES.—Subject to subsection (b), a violation of a 10

regulation prescribed under section 4(b), 5(c), 6(b), 11

or 7(b) shall be treated as a violation of a rule defin-12

ing an unfair or deceptive act or practice prescribed 13

under section 18(a)(1)(B) of the Federal Trade 14

Commission Act (15 U.S.C. 57a(a)(1)(B)). 15

(3) ACTIONS BY THE COMMISSION.—Subject to 16

subsection (b), the Commission shall prevent any 17

person from violating a rule of the Commission 18

under section 4(b), 5(c), 6(b), or 7(b) in the same 19

manner, by the same means, and with the same ju-20

risdiction, powers, and duties as though all applica-21

ble terms and provisions of the Federal Trade Com-22

mission Act (15 U.S.C. 41 et seq.) were incor-23

porated into and made a part of this Act. Any per-24

son who violates such rule shall be subject to the 25



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[Discussion Draft]

penalties and entitled to the privileges and immuni-1

ties provided in the Federal Trade Commission Act. 2

(b) ENFORCEMENT BY CERTAIN OTHER AGEN-3

CIES.—Notwithstanding subsection (a), compliance with 4

the requirements imposed under this Act shall be enforced 5

as follows: 6

(1) Under section 8 of the Federal Deposit In-7

surance Act (12 U.S.C. 1818) by the appropriate 8

Federal banking agency, with respect to an insured 9

depository institution (as such terms are defined in 10

section 3 of such Act (12 U.S.C. 1813)). 11

(2) Under the Federal Credit Union Act (12 12

U.S.C. 1751 et seq.) by the National Credit Union 13

Administration Board, with respect to any Federal 14

credit union. 15

(3) Under part A of subtitle VII of title 49, 16

United States Code, by the Secretary of Transpor-17

tation, with respect to any air carrier or foreign air 18

carrier subject to such part. 19

(4) Under the Packers and Stockyards Act, 20

1921 (7 U.S.C. 181 et seq.) (except as provided in 21

section 406 of such Act (7 U.S.C. 226; 227)) by the 22

Secretary of Agriculture, with respect to any activi-23

ties subject to such Act. 24



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[Discussion Draft]

(5) Under the Farm Credit Act of 1971 (12 1

U.S.C. 2001 et seq.) by the Farm Credit Adminis-2

tration, with respect to any Federal land bank, Fed-3

eral land bank association, Federal intermediate 4

credit bank, or production credit association. 5

(c) ENFORCEMENT BY STATE ATTORNEYS GEN-6

ERAL.—7

(1) IN GENERAL.—8

(A) CIVIL ACTIONS.—In any case in which 9

the attorney general of a State has reason to 10

believe that an interest of the residents of that 11

State has been or is threatened or adversely af-12

fected by the engagement of any person in a 13

practice that violates any regulation of the 14

Commission prescribed under section 4(b), 5(c), 15

6(b), or 7(b), the State, as parens patriae, may 16

bring a civil action on behalf of the residents of 17

the State in a district court of the United 18

States of appropriate jurisdiction to—19

(i) enjoin that practice; 20

(ii) enforce compliance with the regu-21

lation; 22

(iii) obtain damage, restitution, or 23

other compensation on behalf of residents 24

of the State; or 25



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27

[Discussion Draft]

(iv) obtain such other relief as the 1

court may consider to be appropriate. 2

(B) NOTICE.—3

(i) IN GENERAL.—Before filing an ac-4

tion under subparagraph (A), the attorney 5

general of the State involved shall provide 6

to the Commission—7

(I) written notice of that action; 8

and 9

(II) a copy of the complaint for 10

that action. 11

(ii) EXEMPTION.—12

(I) IN GENERAL.—Clause (i) 13

shall not apply with respect to the fil-14

ing of an action by an attorney gen-15

eral of a State under this paragraph, 16

if the attorney general determines 17

that it is not feasible to provide the 18

notice described in that clause before 19

the filing of the action. 20

(II) NOTIFICATION.—In an ac-21

tion described in subclause (I), the at-22

torney general of a State shall provide 23

notice and a copy of the complaint to 24



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28

[Discussion Draft]

the Commission at the same time as 1

the attorney general files the action. 2

(2) INTERVENTION.—3

(A) IN GENERAL.—On receiving notice 4

under paragraph (1)(B), the Commission shall 5

have the right to intervene in the action that is 6

the subject of the notice. 7

(B) EFFECT OF INTERVENTION.—If the 8

Commission intervenes in an action under para-9

graph (1), it shall have the right—10

(i) to be heard with respect to any 11

matter that arises in that action; and 12

(ii) to file a petition for appeal. 13

(3) CONSTRUCTION.—For purposes of bringing 14

any civil action under paragraph (1), nothing in this 15

Act shall be construed to prevent an attorney gen-16

eral of a State from exercising the powers conferred 17

on the attorney general by the laws of that State 18

to—19

(A) conduct investigations; 20

(B) administer oaths or affirmations; or 21

(C) compel the attendance of witnesses or 22

the production of documentary and other evi-23

dence. 24



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[Discussion Draft]

(4) ACTIONS BY THE COMMISSION.—In any 1

case in which an action is instituted by or on behalf 2

of the Commission for violation of any regulation 3

prescribed under section 4(b), 5(c), 6(b), or 7(b), no 4

State may, during the pendency of that action, insti-5

tute an action under paragraph (1) against any de-6

fendant named in the complaint in that action for 7

violation of that regulation. 8

(5) VENUE; SERVICE OF PROCESS.—9

(A) VENUE.—Any action brought under 10

paragraph (1) may be brought in the district 11

court of the United States that meets applicable 12

requirements relating to venue under section 13

1391 of title 28, United States Code. 14

(B) SERVICE OF PROCESS.—In an action 15

brought under paragraph (1), process may be 16

served in any district in which the defendant—17

(i) is an inhabitant; or 18

(ii) may be found. 19

(d) TELECOMMUNICATIONS CARRIERS AND CABLE 20

OPERATORS.—21

(1) ENFORCEMENT BY FTC.—Notwithstanding 22

section 5(a)(2) of the Federal Trade Commission 23

Act (15 U.S.C. 45(a)(2)), compliance with the re-24

quirements imposed under this Act shall be enforced 25



f:\VHLC\050511\050511.258.xml (482645|19)

30

[Discussion Draft]

by the Commission with respect to any telecommuni-1

cations carrier (as defined in section 3 of the Com-2

munications Act of 1934 (47 U.S.C. 153)). 3

(2) RELATIONSHIP TO OTHER LAW.—To the ex-4

tent that sections 222 and 631 of the Communica-5

tions Act of 1934 (47 U.S.C. 222; 551) are incon-6

sistent with this Act, this Act controls. 7

SEC. 9. DEFINITIONS. 8

(a) IN GENERAL.—In this Act: 9

(1) MINOR.—The term ‘‘minor’’ means an indi-10

vidual over the age of 12 and under the age of 18. 11

(2) TARGETED MARKETING.—The term ‘‘tar-12

geted marketing’’ means advertising or other efforts 13

to market a product or service that are directed to 14

a specific individual or device—15

(A) based on the personal information of 16

the individual or a unique identifier of the de-17

vice; and 18

(B) as a result of use by the individual, or 19

access by the device, of a website, online serv-20

ice, online application, or mobile application. 21

(b) TERMS DEFINED BY COMMISSION.—In this Act, 22

the terms ‘‘directed to minors’’ and ‘‘geolocation informa-23

tion’’ shall have the meanings given such terms by the 24

Commission by regulation. Not later than 1 year after the 25



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31

[Discussion Draft]



Code, regulations that define such terms broadly enough 3

so that they are not limited to current technology, con-4

sistent with the principles articulated by the Commission 5

regarding the definition of the term ‘‘Internet’’ in its 6

statement of basis and purpose on the final rule under 7

the Children’s Online Privacy Protection Act of 1998 (15 8

U.S.C. 6501 et seq.) promulgated on November 3, 1999 9

(64 Fed. Reg. 59891). 10

(c) OTHER DEFINITIONS.—The definitions set forth 11

in section 1302 of the Children’s Online Privacy Protec-12

tion Act of 1998 (15 U.S.C. 6501), as amended by section 13

3(a), shall apply in this Act. 14

SEC. 10. EFFECTIVE DATES. 15

(a) IN GENERAL.—Except as provided in subsections 16

(b) and (c), this Act and the amendments made by this 17

Act shall take effect on the date that is 1 year after the 18

date of the enactment of this Act. 19

(b) AUTHORITY TO PROMULGATE REGULATIONS.—20

The following shall take effect on the date of the enact-21

ment of this Act: 22

(1) The amendments made by subsections 23

(a)(5) and (b)(3)(A) of section 3. 24

(2) Sections 4(b), 5(c), 6(b), 7(b), and 9(b). 25



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[Discussion Draft]

(c) DIGITAL MARKETING BILL OF RIGHTS FOR 1

TEENS.—Section 5, except for subsection (c) of such sec-2

tion, shall take effect on the date that is 180 days after 3

the promulgation of regulations under such subsection.4



f:\VHLC\050511\050511.258.xml (482645|19)

Documents

[DISCUSSION DRAFT] TH ST CONGRESS SESSION …online.wsj.com/public/resources/documents/billdraft0506.pdf[Discussion Draft] 1 (5) Children and teens are visiting numerous 2 companies’